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Changes to FOI

Speeches in Parliament
Scott Ludlam 18 Aug 2009

Senator LUDLAM (Western Australia) (11.24 am)

The Australian Greens welcome the government's decision to abolish conclusive certificates under the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 but, strictly speaking, only as part of the broader reform package for Australia's freedom of information regime. Many of the witnesses at the hearings held when the Senate Standing Committee on Finance and Public Administration considered this bill pointed out very strongly that these measures are really only sensible in the context of much broader reforms, and we look forward to those coming before the Senate.
It is very good to see this government showing a degree of leadership on what is clearly a very important issue-that is, commitment to the principles of openness and transparency. The previous government, perhaps most generously, could be said to have had a very mixed record in this regard. The Greens are very committed to open and transparent government at all levels. We have been promoting freedom of information reform in here for some time. We believe that creating a culture of openness at all levels of government is very important, indeed essential, if the Australian people are to have any faith at all in the laws that are made in our name. And it is a prerequisite to an effective democracy.

At this point, I particularly acknowledge my Greens colleague Senator Bob Brown, who has been a very long term advocate of freedom of information reform.

Conclusive certificates, the measures we are dealing with specifically today, allow a minister to effectively circumvent freedom of information laws by barring access to a particular document. Without going into details of the process again, which I believe has been canvassed sufficiently so far, the process did give ministers a right to veto an external review. This, I think, was totally at odds with the purpose of having freedom of information legislation in the first place. So we share the government's belief that it should not be preserved.

We differ, however, when it comes to the status of documents that originate from a Defence or intelligence agency. This goes to the intent of the amendments which have been circulated in the chamber and for which I will be seeking the support of all parties.

Under the government's new subsection 7(2B) a minister is exempt from the act, period, when dealing with documents that have originated from or been received by security and intelligence agencies. Obviously the Greens understand that certain documents originating in these agencies are sensitive in nature and have real consequences for our national security, defence, international relations and so on. We would not want to be seen to be diminishing those considerations. We recognise that these kinds of documents cannot necessarily be made public. However, section 33 of the existing Freedom of Information Act, which remains unamended by the provisions before us today, provides very clear exemptions to deal with these things so that national security and other concerns are not compromised by FOI requests. Under that section, documents that deal with these sorts of interests, and would be or could reasonably be expected to cause damage to these interests, are exempt. These protections already exist in the drafting of the original act; so this protects documents when required in the national interest.

Like the Australian Press Council, who made a submission to the inquiry into this bill, the Greens do not believe that, simply because a document originated in a security agency, it automatically has implications for national security and therefore should be held behind a firewall of automatic exemption. In fact, many documents pass through any number of agencies, including some security and intelligence agencies, before they reach a minister. It is ludicrous simply to tick a box and say that if it has come through a certain department then it is in the national interest and should be excluded. There are instances when the public absolutely has a right to know and must know about the nature of documents that originated in security agencies.

Most recently, under the former government, we saw the most appalling treatment of Dr Haneef. His visa revocation case dealt with inconsistencies between reports and threat assessments by different agencies. That information needed to be made public in the interests of accountable and transparent government. Of course, it was, and the rest is on the record. It should be noted that this attempt to exclude security agencies from freedom of information is particularly worrying in the Australian context, and particularly now. This is a point that was taken up by Associate Professor Moira Paterson of Monash University Law School in her submission. We do not have a bill of rights in Australia in which the rights and freedoms of citizens are protected. We are vulnerable to our civil liberties being jettisoned in the name of national security, not necessarily in big, dramatic cases such as the case of Dr Haneef but in the slow creep and advance of these laws as they encroach into our rights and freedoms.

The appalling treatment of Dr Haneef is probably the most recent case in point. If these agencies are not subject to public scrutiny, how can we ensure that they do not exceed their brief? How can we ensure that they do not throw our human rights out of the window in the name of national security?

It was put to me in a conversation with a very senior legal counsel who has worked on many of the terror cases where these sorts of laws might come into effect that the security intelligence agencies need to be tightly circumscribed under law and not be exempt from the sorts of provisions that we see under the Freedom of Information Act. This is partly to their own protection, so that the laws and the boundaries within which they operate are made clear. We must have a freedom of information regime that gives us the power to review the work of these agencies where possible, within the provisions as they exist to protect national security. We must have an FOI regime that gives us the flexibility to weigh the public interest in national security against the public interest in accountability and transparency because sometimes the latter will outweigh the former.

It is for this reason that we are moving the amendments to strengthen the government's bill today. I believe that, if the government wants to come back with properly considered proposals for further exemptions for security agencies, that should certainly be considered and will be considered in good faith by the Australian Greens when the substantive reforms to the FOI Act come before us-whenever the government chooses to bring that forward. But we do not believe that these provisions belong in the FOI amendment bill that we see before us today. Under our amendments, section 7(2B) would be deleted, section 7(2A) would be amended and section 7(1) would be deleted. This has been proposed by the Australian Greens to ensure that we do not allow the pendulum to swing too far in favour of security at the expense of open, transparent and accountable government.

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